Walimbwa v Uganda (Criminal Appeal 154 of 2016) [2024] UGCA 134 (31 May 2024)

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL Or. UGANDA AT MBALE CRIMINAL APPEAL NO.154 OF 2016 (Coram: Egonda, Gashirabake & Kthika, JJA|

# WALIMBWA GEIOF R"EY : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : APPELLANT

#### vERSUS

UGANDA:::::::::::::::::::::::::r3:::::::::::i::::::::::::::::::::::::::::::: RESPONDENT lAppeal from the decision of Justice Henry I. Kawesa in the High Court of Mbale HC Crim. Session No. 152 of 2O13 dated lOu March 2016l

#### JUDGMENT OT THE COURT

# lntroduction

The appellant was indicted and convicted of Aggravated Robbery contrary to section 285 e 286 (2) of the Penal Code Act Cap 120, he was sentenced to 20 years' imprisonment.

# lsst ground

The brief facts are that on 06th July, 2011 at around 8:30pm, the complainant SITEK IMMACULATE was from duty on her way back home along Yona Okoth Road. The appellant who was in possession of a knife, was walking along the same road following the victim who suddenly attacked, assaulted her and grabbed her handbag which contained money worth 160,000/=, ATM cards of Centenary and Barclays bank, staff identity card and that of one Joseph Mwiwa. The appellant ran off with her properties. The complainant reported the matter to police the next day.

However, it was no unt:l 2l I 06 /20 I 2 when she was summoned to Tororo police station to identify her ID and the ATM cards. This was after a search was conducted in the appellant's house where the above items were recovered after having been involved in another robbery case of <sup>a</sup> motorcycle. The complainant identified her properties and informed the police that she had earlier been robbed by an unknown person. The appellant was accordingly charged and in his charge and caution statement, he confessed that he robbed the complainant of her bag which contained shillings. 140,000=, ATM cards and her personal ID. The cards were exhibited and the appellant was later on examined on police form 24 and confirmed to be of sound mind:

The appellant was subsequently tried and convicted of aggravated robbery and sentenced to 20 years' imprisonment. Being dissatisfied the appellant appealed to this on court on one ground.

#### Ground of Appeal

The learned trial judge erred in law and fact when he sentenced the appellant to 20 years' imprisonment, without considering the sentencing guidelines.

#### Representatlon

At the hearing of the Appeal, the appellant was represented by Ms. Agnes Kanyago, while the respondent was represented by Innocent Aleto, Senior State Attorney. The court granted the appellant leave to appeal against sentence only and va-lidated the appeal. Both counsel proceeded by way of written submissions.

### Submiesions for the Appellant

Counsel for the appellant submitted that the learned trial judge found the appellant guilty and sentenced him to 2O years' imprisonment and he faulted the judge for not considering and deducting the period the appellant spent on remand. It was the further submission of the appellant that much as the trial judge while sentencing, stated that he had deducted the 3 years spent on remand, the deduction was not reflected in the sentence. Counsel for the appellant relied on the case of Rwabugande Moses v Uganda, SCCA No. 25 of 2014; Article 23(81 of the 1995 Constitution of the Republic of Uganda and Guideline 15 of the Constitution (Sentencing Guidelines of Courts of Judicature) (Practice) Directions, 2013 in support of his submissions.

# Submlssions for the Respondent

Counsel for the respondent opposed the appeal. He argued that the learned trial judge complied with the requirements under Article 23(8) of the 1995 Constitution and The Constitutional (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 20 13. It was the submission of the respondent, that the sentencing regime at the time did not require the trial judge to mathematically deduct the period spent on remand. It was further submitted that the learned trial judge rightly applied the law as it was then and that the arithmetical deduction as alluded too by the appellant's counsel was not applicable at the time of sentencing the appellant. Counsel prayed for court to disallow the appeal and uphold sentence.

## Court's consideration

We have carefully taken into consideration the appellant's appeal, the submissions of counsel, the law, and judicial precedents referred to by counsel.

As a first appellate court, we are required to re-appraise all the evidence adduced at the trial and arrive at our own conclusions and draw inferences on questions of law and fact. We are mindful that we did not see the witnesses testify. See Kifamunte Henry v Uganda SCCA No. 10 of 1997, The Executlve Director of National Enwironmental Matragement Authority INEMAI v Solid State Limited SCCA No. 15 of 2O15 (unreportedl and Pandya Vs R [f957] EA 336.

The law that governs appellate courts while sentencing was discussed in Kiwalabye Bernard v Uganda, Supreme Court Criminal Appeal No. 143 of 2OO1 where court held that,

\*the oppellate court ls not to lnterfere wtth the sentence lmposed. bg a trlal court uhlch has exerclsed lts dlscretlon on sentence zntess the exerclse of the dlscretlon is such that lt resu lts ln the sentence lmposed to be rnanifestty excessi tre or so lout as to amount to a mlscrrrrirrge of Justtce or uhere a trlal court lgnores to consld.er an lmportant matter or clrcum.\*ances uhlch ought to be consld.ered. uhlle passlng the sentence or ulhere the sentence lmposed ls utrong ln prlnclple."

As stated before, Counsel for the appellant relied on the decision of Rwabugande (supraf for the proposition that the period spent on remand ought to have been deducted by the learned trial judge. Counsel for the respondent on the other harrd averred that the principle in

Rwabugande(Supral could not have been binding on the trial judge stnce the case was decided after the learned trial judge had dealt with the matter before us.

The approach in Rwabugande lsupral which relies on Article 23(8) of the 1995 Constitution of the Republic of Uganda takes the position that while considering sentencing, the trial judge is required to compute the period that the convict spent in lawful custody before conviction and deduct it from the sentence the trial judge renders and the deduction has to arithmetically be reflected in the Judgement.

In the instant case, while sentencing the appellant, the learned trial Judge stated as follows;

"Conuict is conuicted of aggrauated robbery C/S 285 and 286 (2) of the Penol Code Act.

The moimum is death in the rarest o/cases. The beginning range from guidelines is 35 gears, but range is 3O to death. The mitigations are that acqtsed is 4O years, been on remand for obout 3 gears. He is a widouer, has a familg and dependants, praged for leniency.

Aggrauating factors are that there tuas premeditation. The uictim uas trulnerable and defenceless. He is not remorseful.

Court notices that the mitigatione diue the sentence a utag from the ma-rimum of death and pull it to the beginning range for anstodial sentences uthich is 3O gears. Howeuer, the aggrauating factors pull it bock to the starting point of 35 gears. Balancing the Mitigation and aggrauating factors aboue, ulrcn court remoues the period on remand, the conuicts needs a sentence uthich will correct his behauiours, lead to deterrence and also create reform in his behauiour.

The mitigations therefore utill be deducted,and remand of 3 gears deducted, conuict will serue 20 years anstodial sentence.o

We have carefully considered the wording used by the 1earned tria\_l judge, it is evident that the learned trial judge put into consideration the mitigating factors of the case. It is also evident that the learned trial judge considered the time the appellant spent on remand although he did not deduct the same from the sentence.

When sentencing, courts are mandated to consider the period spent on remand. Article 23(8) of the Constitutlon of the Republic of Uganda 1995, as amended stipulates that,

nWhere a person ls conulcted and. sentenced to a tenn of lmprlsonment for an offence, ang perlod. he or she spends ln lawlul custody ln respect oJ the oflence beJore the completlon of hls or her trlal shall be taken lnto account ln lmposlng the tertn of tmprlsonrnent.'

Principle 15 of the Sentencing Guidelines provides that.

"(1) The court shall take into account any period spent on remand. in determining an appropiate sentence.

(2) The coutt shall deduct the perlod slnnt on remand from the sentence considered appropriate afier all factors haue been taken into account."

In the case of; Rwabugande, (supra) the court held as follows;

"That a sentence arrlued at wlthout putttng lnto consld.eratlon tlme spent on remand utas lllegal lor fallure to complg uith rno;nd.atory constlhttlonol proulslons, CourA turther emphastzed thoit the consld.eratlon ought to be a mathematlcal deductlon consld.ering the fact that the tlme spent on remand. is specifica I lg knoutn.o

Counsel for the respondent averred that the principle in Rwabugande (Supra) could not have been binding dn the trial judge since that case was decided after the learned trial judge had dealt with the matter before us. We are unable to agree with that proposition given that it is at odds with the Constitutional cases of Attorney General v Susan Ktgula and 417 Others [2OO9l UGSC 6 and Duke Mabeya v Attorney General 12o231 UG,CC 1O4 which held that where there is a new rule of constitutional interpretation in respect of a penal provision, that new rule should apply to all existing matters that have not been Iinally resolved. It would therefore follow that with regard to the matter before us, being still alive in the appellate system, this rule should apply to it.

To be clear, we are aware that the Supreme Court in Nashlmolo Paul Klboko v Uganda l2O2Ol UGSC 24 held that the Rwabugande rule should apply to only those cases that were decided at first instance after the Rwabugande decision was made on 3rd March 2017. This position conflicts with the Supreme Court decision in Attorney General v Susan Ktgula andl 417 Others (supra) which was a constitutional appeal (with 7 Justices sitting) from a decision of the Constitutional Court which applied the new interpretation to all existing cases that had not been frnally resolved.

The Supreme Court in Nashlmolo PauI Kiboko v Uganda (supra) (a criminal appeal with 5 Justices sitting) did not refer at all to Attorney General v Susan Kigula anl.d, 4L7 others (supra) which in our humble view was the controlling authority on this point, and bound both the Supreme Court, and all courts below. We are therefore constrained to follow, Attorney General v Susan Kigula and.417 others (supra) with

regard to the application of the Rwabugande rule, rather than Nashimolo Paul Kiboko v Uganda (supra)

Given the above, the learned trial Judge ought to have deducted the period that the appellant had spent on remand, which he did not do. We thus find the sentence illegal for violating Artlcle 23 (81 of the Constitution of the Republic of Uganda and we set it aside for that reason.

Having set aside the sentence, we invoke the powers of this court under the provisions of section 11 of the Judicature Act to re-sentence the appellant. This court sentences the appellant to 12-years imprisonment and deducts the period of 3 years, spent on remand. The appellant is therefore to serve a term of 9 years' imprisonment, from the date of conviction which was lOth day of March, 2O 16.

We therefore a-llow the appeal.

We so Order

Signed and dated this .......day of n^o^J .....2024 F+

, M. S EC'ONDA NTENDE Justice of Appeal

i

CHRISTOPHER GASHIRABAXE

Justice ofAppeal

I

os Justice ofAppeal